Boxed In

By Peter C. Baker.
This is a copy of an article which appeared in the 2 June 2008 edition of The Nation;
We have added a few hyperlinks to it and also one editor's note inside [square brackets].
It is a book review for both the following two books:

The Nation's 1-line Synopsis:
Electoral reform in the United States will require federal intervention to empower voters and overcome the challenges posed by state and local autonomy.

Every applicant for US citizenship is required to take a test, and every
question on the current test is drawn from the same master list of 100
questions. Many are eminently reasonable ("Who is the President of the
United States today?"); others are somewhat trivial ("Who said, 'Give me
liberty or give me death'?"). One reads like a discussion question from
a fifth-grade history book, the kind with no right answer: "What is the
most important right granted to U.S. citizens?"

According to the US Citizenship and Immigration Services, there
is a right answer – the "right to vote." And though the
Constitution contains no affirmative right to vote (only barriers to
disenfranchisement on the grounds of factors like race or sex), this is
hardly an incoherent response. Suffrage is obviously crucial to
democracy. However, the question and its presence on the citizenship
test implies more than that – a nation with a deep, practical and
well-thought-out commitment to suffrage. But the United States is no
such nation. Its deficiencies on this front are complex and bewildering;
a more honest and interesting exam question would be, "Do all citizens
truly enjoy the right to vote?"

In Stealing Democracy, Spencer Overton, a law professor at George
Washington University, invokes the metaphor of "the matrix" to convey
how the electoral landscape is dominated by a "collection of
ever-changing rules and practices employed by various partisans and
bureaucrats." It plays host to trickeries that "often exclude particular
voters, enhance the power of certain politicians, and advance specific
policy preferences." Overton's fervent hope is that we can remake the
matrix "so that it more fairly empowers all voters rather than simply
privileging the insiders who know how to manipulate it."

The metaphor (a reference to the sci-fi flick The Matrix) is a
touch corny, but overall Stealing Democracy lends argumentative
and evidentiary rigor to liberal conventional wisdom on a host of
electoral matters: voter ID laws (bad), multilingual ballots (good),
electronic voting machines (bad, so far), enfranchisement of released
felons (good, as agreed upon by 80 percent of Americans and every
democracy except Armenia). This is, of course, valuable work. Of broader
value, however, is the instructive mixture of pessimism, pragmatism and
hope with which Overton approaches democratic reform. Stealing
Democracy is no vague antistate (or antimatrix, or whatever) "power
to the people" exhortation. Overton dreams big, but his ultimate
recommendations are, given the scope of the problem, quite modest. They
inspire without being vague or sweeping – and are all the more compelling
for it.

Overton's pessimism stems from his conviction that wherever elections
take place, there is a nearly innate "propensity of self-interested
politicians to enact rules that benefit themselves instead of the
electorate." Of course, there is no universal proof for such a premise,
and that's fine. Any intelligent discussion of election systems should
proceed as if the premise might be true. Plus, Overton cites a flood of
piecemeal evidence suggesting it is true, including California's 2001
bipartisan redistricting scheme, which reduced its number of competitive
US House, State Senate and State Assembly seats from forty-four to
seventeen (out of 153); the recent redrawing of House districts
nationwide such that 98 percent of incumbents retained their seats in
2004; the admission in 2003 by then-Alabama Republican Party chairman
Marty Connors that his party is opposed to restoring released felons'
voting rights "because felons don't tend to vote Republican." Perhaps
this is why elections in 75 percent of democracies are run or supervised
by judges or independent officials, and why almost all countries with
single-representative voting districts leave redistricting to
independent commissions. Overton wishes we would join the democratic
world.

He knows, however, that states' rights are the foremost impediment to
nationwide electoral reform. In most of the United States, duopolistic
state legislatures draw voting districts (which invariably become safer
for incumbents) and elected partisans oversee elections. States further
depute election administration to county, city and town governments.
Thus, by Overton's count "there are 4,600 different election systems" in
the country. Every factor – funding, staff, machines, oversight, ballot
design, recount mechanisms – varies from state to state and county to
county. This gives politicians' tendency to game the vote plenty of
bureaucratic cover, making it more difficult to notice and fight (which
partially explains why and how other countries have instituted reforms
while America has not). Without positive enshrinement in the
Constitution or vigilant protection by nonpartisan enforcers, "an
American's right to vote and have the ballot counted depends on where he
or she lives," Overton says.

He sees few benefits to maximizing state and local control. He doesn't
put it this way, but "local tailoring" smacks much too strongly of
"separate but equal." Obviously, local responsiveness to citizens' needs
is a good thing, as is the ability of states to check federal abuse;
Overton cautions against centralizing authority in a single election
czar. But a state's or district's rights cannot include the right to
allow (intentionally or otherwise) some votes to count less than others.
Overton would like Congress to recognize this and legislate accordingly.

This is not a radical suggestion, constitutionally speaking: the
Elections Clause, Spending Clause and several amendments (namely the
Fourteenth, Fifteenth, Nineteenth and Twenty-fourth) variously empower
the government to ensure truly democratic representation nationwide. So,
at the very least, Congress can and should quadrennially budget the
estimated $4 billion needed to underwrite basic fairness in locally
administered elections. (That's double what is currently spent by
districts and the federal government combined, .24 percent of the
Defense Department budget for 2006 and twelve days of fighting in Iraq.)
Congress could also require states to legislate minimum standards of
fairness (like uniform counting procedures) and accountability (like
full election audits) before receiving funds. Congress has asserted such
authority before: there's the 1965 Voting Rights Act (VRA), the 1984
Voting Accessibility for the Elderly and Handicapped Act, the 1986
Uniformed and Overseas Citizens Absentee Voting Act, the 1993 National
Voter Registration Act and the 2002 Help America Vote Act.

Unfortunately, as Overton sees it, state and local autonomy remain the
sacred cows of American election law (see Bush v. Gore and, more
recently, Crawford v. Marion County Election Board). Thus,
Stealing Democracy expresses little hope for the sort of federal
reform and centralization needed to maximize the equality of voting
rights. Instead, Overton pragmatically commits much of his energy to
insistently defending the Voting Rights Act as the last and most
valuable line of federal defense against rampant disenfranchisement in
the states. In his eyes the act is invaluable because it codifies, in
Section 5, a compliance requirement (known as "preclearance") designed
to prevent state and local governments from sneaking back into
exclusionary election practices. Section 5 originally applied to the
seven states (Alabama, Alaska, Georgia, Louisiana, Mississippi, South
Carolina and Virginia) and four localities (counties in Arizona, Hawaii,
Idaho and North Carolina) with low voter turnouts and the most
established histories of excluding voters of color via literacy and
interpretation tests. These governments were ordered to submit all
proposed changes in election practice to the Justice Department or a
panel of three federal judges for review.

Since 1965 the VRA has been renewed four times, and Section 5 has been
broadened to cover more states, localities and racial groups. The 1970
renewal extended the preclearance requirement to cover several districts
in Northern states that had imposed new exclusionary voting tests after
1965, and the 1975 renewal recognized the need to protect Latino,
Asian-American, American Indian and Native Alaskan votes. Section 5
review has blocked more than 1,000 discriminatory changes in election
law practice. Overton sees it as the most important piece of voting law
on the books, and he is perturbed by the increasing popularity of
certain attacks on it.

Some politicians affected by Section 5 argue that it is unfair for them
to be burdened with the hassle of preclearance as atonement for the
long-ago sins of their racist predecessors. "We have repented, and we
have reformed," complained Representative Lynn Westmoreland, a
Republican from Georgia, during the debate preceding Section 5's 2006
renewal. This objection has little practical force, since any electoral
district can apply to "bail out" permanently from the preclearance
requirement after complying with the VRA for ten years. Anyway,
preclearance is no backbreaking burden: Overton calculates that the
average application process costs only $458, much less than the
multimillion-dollar discrimination suits Section 5 deters.

Still, Overton fully supports moving past potentially "outdated
stereotypes," particularly about the South, when deciding which
districts have problems with exclusion and deserve to be covered by
Section 5. He proposes eight quantifiable signs that an area deserves
federal scrutiny for exclusionary practices, including "Largest racial
disparities in voter turnout" and "Most Voting Rights Act objections and
claims per capita." However, since these criteria would generally expand
Section 5 coverage, they are unlikely to pacify critics like
Westmoreland.

A related objection to Section 5 takes contemporary America to be so
"colorblind" that fighting racially motivated voter exclusion is a
misguided and impractical use of finite resources. This claim is
obviously tendentious (to put it politely). Interestingly, it doesn't
matter much to Overton whether any partisan officials are actually
racists. All that matters is the fact, supported with pages of studies
and examples, that "physical appearance, socioeconomic factors such as
housing segregation, and distinct voting trends make people of color
particularly vulnerable targets for exclusion." Put otherwise: all votes
are equally worth protecting, but some remain demonstrably more
vulnerable than others. Today's cutthroat and sophisticated political
operatives may or may not be "postrace," but they are not colorblind.
This is why, in the absence of fundamental federal reform, American
suffrage needs Section 5.

Lurking behind the question of suffrage is the equally important
question of expressiveness: how well voting captures the true will of a
people. Imagine that someday all of Overton's dreams come true: somehow
all US citizens are able to register to vote and have their ballots
counted. (All right: also imagine away the Electoral College and flawed
primary processes.) Could we then stop worrying about the efficacy of
voting, supposedly the most basic element of democracy?

We could not, thanks to a fundamental flaw with the very concept of
plurality voting. This flaw, described by William Poundstone in
Gaming the Vote as the "invisible hand misguiding the whole
electoral process," is familiar to any casual observer of American
politics over the past decade: it is the phenomenon of vote-splitting
between candidates in a winner-take-all election. In the United States,
vote-splitting is manifested most often in the so-called spoiler effect,
wherein a third-party candidate takes enough votes from a front-runner
to influence an election. Political operatives know all about the
spoiler effect and often support hopeless candidates (as Republican
operatives supported Ralph Nader in 2004) to siphon votes away from
their opponents. Of course, not all third-party candidates are spoilers,
and it can be hard to ascertain when spoilage has occurred. Third-party
candidates can draw supporters to polls who otherwise wouldn't have
voted.

But even without spoilers, plurality voting is defective. A 1948 RAND
Corporation report by economist Kenneth Arrow presented mathematical
proof that no voting system (including plurality) under which voters
rank their preferences in elections among more than two candidates can
guarantee logically fair and nonparadoxical results.
"Arrow's theorem,"
explains Poundstone, "says that election outcomes can be decided by
quirks of procedure as much as the voters' authentic wishes." The
finding (which won Arrow the Nobel Prize in 1972) rattled the American
intellectual community by implicitly questioning whether "democracy and
individualism might in some deep way be inadequate." Put otherwise: can
voting ever accurately express the will of the people?

Most contemporary voting experts concede that all voting methods contain
the possibility of paradoxically unfair outcomes but insist that these
possibilities can be minimized. Testy and complex back-and-forths rage
over which paradoxes are most troubling and which solutions best
minimize them. The method with the strongest combination of academic and
popular support is called Instant Runoff Voting. In IRV, voters rank
multiple candidates (plurality voting limits a voter to ranking just one
candidate as "first-place"). If no candidate wins a majority of
first-place votes, a virtual runoff is held in which the candidate with
the fewest first-place votes is dropped from the ballot, and his or her
supporters' second choices are distributed appropriately (any potential
spoiler's votes would be transferred to another candidate before
spoilage could occur). This continues until a majority winner emerges.
Had Florida used IRV in the 2000 presidential election, Al Gore would
have won the state and the Electoral College if just 51 percent of Nader
supporters placed Gore second. In addition, Nader and other third-party
candidates might have scored significantly higher than they did, since
IRV seems to eliminate the fear of "wasting your vote" on a probable
loser.

IRV should not be confused with the systems of proportional
representation at work in most European countries. Poundstone defines
proportional representation as "the doctrine that political parties (or
other groups) should be represented in a legislature in proportion to
their size in the electorate." Some countries facilitate this doctrine
with a voting method called the single transferable vote (STV), in which
voters rank every candidate, victory requires a certain number of votes
and votes for the most unpopular candidates are transferred to those who
remain. Transfer formulas vary, and it gets pretty complicated, but the
point is: IRV employs the single transferable vote to elect just one
candidate instead of a whole legislature. One can logically support
proportional representation (as Poundstone and Overton hint that they
do) without supporting IRV, and vice versa.

On the face of it, IRV seems like quite a radical reform. It prompts
visions of voters striding to the polls to express themselves honestly,
elections unfolding unspoiled, vibrant third parties growing in strength
and major parties either courting broader constituencies or losing
power. This intuitive appeal explains the support IRV has enjoyed from
sources as varied as John McCain, Barack Obama, Howard Dean, the Green
Party, the Libertarian Party, the Alaskan Republican Party, at least
four state Democratic parties, Ralph Nader and New Yorker
election reform guru Hendrik Hertzberg. It is used by Australia,
Ireland, Malta, several professional organizations and a handful of
American cities and college campuses.

Poundstone, however, is not convinced that IRV is the solution worth
gunning for. He is troubled by its ability to produce a
"winner-turns-loser" paradox in which ranking a candidate higher
actually makes him or her lose by altering the order in which candidates
are eliminated. Poundstone demonstrates this complicated truth by
reimagining the 1991 Louisiana gubernatorial race under IRV:

Thirty-four percent of the voters are for [corrupt Democrat Edwin]
Edwards, 32 percent are for [white supremacist David] Duke, and 27
percent are for [moderate Republican Buddy] Roemer.... Since Edwards
does not have a majority, the lowest-ranking candidate will be
eliminated. That's Roemer. Roemer's votes are transferred to the
remaining two candidates, giving Edwards an easy victory over Duke....
Now say that Edwards decided to court the Duke vote just before the
election. He gave speeches or ran ads or spread rumors, with the result
that a few Duke voters (6 percent of the electorate) switched their
votes to Edwards. They ranked Edwards first, ahead of Duke.
The resulting numbers are now 40 percent for Edwards, 26 percent for
Duke, and 27 percent for Roemer. See what happens? Duke is now in third
place. It's Duke who is eliminated. The runoff is between Edwards and
Roemer. Most of Duke's archconservatives rank moderate Roemer ahead of
liberal Edwards. Therefore, the Duke vote is transferred primarily to
Roemer, who beats Edwards by up to 13 points. This outcome is in line
with the perception that Roemer would have beaten Edwards in a two-way
contest.
For the 6 percent who switched, voting for Edwards instead of Duke
caused Edwards to lose. This is through-the-looking-glass
politics. It is even crazier than the spoiler effect.

IRV has many flaws, including an inherent bias against a moderate
running in a field of extremists, but the winner-turns-loser possibility
(referred to by voting geeks as a nonmonotonic outcome) is the most
unpalatable. It becomes more complicated and more unsettling when
combined with the potential for voters to attempt to exploit the paradox
by pretending to prefer candidates they really hate. As you might
imagine, this can really foul things up.

According to the Center for Voting and Democracy (also known as
FairVote), which campaigns heavily for IRV and other electoral reforms
(and counts Hertzberg among its board members), winner-turns-loser
outcomes are so unlikely that they are not worth worrying about. This is
less than reassuring. It is also representative of FairVote's
off-putting tendency to act (at least on the subject of IRV) more like a
strategically message-centric and obfuscation-prone political campaign
than as a project of free inquiry.

A search of the FairVote website for "monotonicity" returns just two
unique results ("winner-turns-loser" returns zero). One is a
long-archived [editor's note: but highly erroneous]
page explaining that "one statistical study found that if
STV elections were to be held through the United Kingdom, a nonmonotonic
result would occur less than once a century." The one current page
similarly insists that "Potential non-monotonicity...is irrelevant in
practice and will not affect voter strategy." To support this claim,
FairVote cites one paper in the Journal of Politics. I read the
paper; its conclusions are highly tentative, and the author writes that
his argument "does not establish [IRV's] general superiority." Some open
discussion with critics takes place in the comments section of the
fairvote.org blog, but cherry-picking and repetitious obscurantism are
common there too. As an institution, FairVote is obviously terrified of
admitting possible holes in IRV's armor.

FairVote's position is further exemplified by its response to range
voting, the method Poundstone ends up tentatively advocating. In range
voting, voters don't rank all candidates; they rate them on a scale
(such as 1 to 10, with an X for "no opinion"), and the candidate with
the highest average rating wins. (Almost all advocates of range voting
support requiring a candidate to receive ratings from at least half of
voters to win.) By giving up on ranking, range voting appears to avoid
any troublingly paradoxical outcomes. FairVote's website notes
disparagingly that range voting "could cause the defeat of a candidate
who was the favorite candidate of 51% of voters." But this could happen
only if another candidate received strong approval from a majority of
voters. Rare outcomes like this would be no blow to democracy, only to
the arguably antidemocratic practice of victory by minimal coalition.

Nonetheless, range voting has received next to no support in academia or
the real world. The Center for Range Voting is little more than the pet
project of former Temple University mathematician Warren Smith, without
whom range voting would probably be unknown (even to Poundstone). The
CRV website is ugly and hard to navigate but populated by sophisticated
statistical analyses and thoughtful, often-damning responses to almost
every claim made by FairVote and advocates of other voting methods. It
feels like the work of a man who isn't out to win but to get a
complicated problem right. FairVote would serve democracy well by
following that man's lead. Of course, then it might end up having to
agree with Poundstone that range voting certainly seems worth trying.

In the midst of pondering how many voters might be expected to vote
honestly in a range-voting election, Poundstone (following Smith) offers
the following synopsis of the textbook "voter paradox": "If there is a
one-in-a-billion chance of your vote's deciding the election, and if it
costs you one dollar in lost time or transportation expense to vote,
then voting is irrational unless you place the value of your candidate's
winning at one billion dollars."

He goes on to speculate briefly as to why "more-or-less rational people"
vote anyway. Some, he suggests, have surely been "programmed to feel
guilty when they don't vote." For the nonprogrammed, "voting is a
symbolic or quasispiritual act. They vote to feel part of the political
process, to be connected to something bigger than their own petty
concerns. For whatever reason we vote, narrow self-interest plays little
role." Here Poundstone misses a valuable chance to point out that
rational-choice theory sometimes fails to offer the richest framework
for explaining human actions. He realizes that the purpose of voting
probably isn't to hope against odds that your vote will tip the race and
thereby increase your personal utility, but he doesn't offer any
alternative.

A suggestion: voting is a radical act in which democratic free agents
join a collective process; in doing so, they simultaneously surrender to
that process and find richer definition as free individuals. If this is
right, the purpose of Section 5 and voting system reform is to honor
this radical surrender by making the relevant collective process more
honest, expressive and, well, actually collective.

To the extent that this sounds hokey, I think it's because we are
unaccustomed to thinking this way about life in a democracy.
Nonetheless, the possibility of doing so remains enticing. I think
Spencer Overton realizes this and ultimately draws hope from it. In the
conclusion of Stealing Democracy, he recalls one of his students
asking him, "Why should we care?" Overton responds by sharing the
stories of people who, despite their recognition that broad reform is
generally impossible without a crisis (the Voting Rights Act was passed
only in the outraged aftermath of Selma's "Bloody Sunday") and the fact
that "life is overwhelming," devote time to working toward incremental
election reform, mostly at the state and local levels. As a result, they
feel less "detached, alone, and shortchanged" than before. They realize
that living in a democracy means more than having one vote, and they
start defining their vote against a lived constellation of commitments.
They feel, perhaps for the first time, actively American.